I want to share my experience, as a patent agent in Hong Kong, for working on Intellectual Property Protection in China and the rest of the world.

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Saturday, February 13, 2010

DAB Trademark – Class “25” & “Class 41”

Another Chinese New Year tradition in Hong Kong is, going to the “flower market”!

It usually starts 5 or 6 days before the Chinese New Year, ends on the dawn of the New Year Day. The flower-owners and other stall-owners would usually drop their prices towards the dawn on the last day with a view to get everything sold. They would even destroy the flowers, tangerines etc as “want money don’t want goods” is their collective goal!

There are several flower-markets (Causeway Bay, Mong Kok, Kwun Tong, Tsuen Wan etc) and the biggest one is Victoria Park in Causeway Bay where a few pan-democratic parties would normally make use of this good chance to promote their own political parties.

After the recent “5 District Resignation” which aims at witnessing their belief on “universal suffrage” by Civic Party (“CP”) and League of Social Democrats (“LSD”) (the two political parties in Hong Kong), supporters have different ideas to support such movement. They put forward a sale of their design of tee-shirts (2 different style) of which the profits will go to the funding of this new political campaign in a booth in Victoria Park. In one of the two tee-shirt design, there is a similar trademark (both form and color) of their competitor – Democratic Alliance for the Betterment and Progress of Hong Kong (“DAB”). This particular design is to put a mark that is similar to DAB’s trademark in the left-hand side, then following with a famous Chinese 4-word proverb whereas the last word means “shame” is missing. For the non-Chinese reader, that 4-words are always used together. Thus by quoting only three words, that implies “shameless”.

The idea is to use the DAB registered trademark and slightly modify it to make it looks different for the knowing, or if you really want to find out the different, but looks the same for the lay man. That is, the tee-shirt would implies that DAB is shameless. Subsequently, DAB was offended!

DAB has lodged a complaint as they are of the view that their trademark has been infringed. In the afternoon of 12 February 2010, the last second day of the flower-market, a few officers from Customs and Excise Department went to this booth to collect the unsold tee-shirts with a view to investigate the intellectual property infringement.

The “Trade Mark Record” as obtained from the Trade Marks Registry, Intellectual Property Department, shows that their registration number is 200102834, they registered for it in 1999 with the expiry date on 26 April 2016. They are registered as “Class 41” of which the specification reads: “arranging and conducting exhibitions, conferences, public meetings and group discussions for cultural and educational purposes; arranging and conducting lectures relating to culture and education; publication of books, magazines and printed matters; conducting and arranging conference, exhibitions, public meetings, group discussion and lectures relating to political affairs and elections, and the safeguard and maintenance of social and political stability in Hong Kong; all included in Class 41.”

Unfortunately, they have not registered for “Class 25”! If they do, they would have the exclusive right to use the mark for tee-shirts or other clothing. Without that, it can become a “passing off” case, they may consider to take civil proceedings. Infringement and passing off are different concepts in terms of intellectual protection and the whole case of Customs and Excise Department taking such a high profile action can be an interesting topics in the coming few weeks.

For further information, “Class 1” to “Class 34” are for “goods” while “Class 35” to “Class 45” are for “services”. Details can be found here.

Now it is time for me to make some purchases at the flower-market and check out other infringemnt cases! Well, as I am told that I look like Andy Lau, please do not ask for my autography or taking photos with me if his fans meet me there!

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